Weatherly, Michael W. and The City of Lake Jackson v. Derby, Robert L.--Appeal from 149th District Court of Brazoria County

Reversed and Rendered and Opinion filed August 1, 2002

Reversed and Rendered and Opinion filed August 1, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00548-CV

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MICHAEL W. WEATHERLY AND THE CITY OF LAKE JACKSON, Appellants

V.

ROBERT L. DERBY, Appellee

On Appeal from the 149th District Court

Brazoria  County, Texas

Trial Court Cause No. 7477*RM99

O P I N I O N

This is an interlocutory appeal from the denial of a motion for summary judgment based upon the affirmative defense of official immunity. See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(5) (Vernon Supp. 2002). In one point of error, appellants claim the trial court erred in denying their motion. We reverse and render judgment in favor of the appellants.

Background and Procedural History

On June 22, 1998, Dr. Mouin Sabbagh contacted the Lake Jackson Police Department for assistance because one of his patients was threatening to commit suicide. Sergeant Michael Weatherly of the City of Lake Jackson Police Department responded to the call. Weatherly was traveling southbound on Yaupon Street at approximately 59 miles per hour with the lights of his marked patrol car flashing when he approached the intersection of Yaupon Street and Yaupon Court. There, Weatherly=s police car collided with a car driven by Robert L. Derby, appellee, who had pulled out from Yaupon Court in front of Weatherly.

Derby filed suit alleging negligence against Weatherly and the City of Lake Jackson (ACity@).[1] After conducting discovery, Weatherly and the City filed a motion for summary judgment based on the affirmative defense of official immunity. The trial court denied their motion. This interlocutory appeal followed.

Official Immunity

Weatherly and the City argue the trial court erred in denying their motion for summary judgment based on official immunity. Official immunity is an affirmative defense that protects governmental employees from personal liability so that they are encouraged to vigorously perform their official duties. Telthorster v. Tennell, 45 Tex. Sup. Ct. J. 948, 949 ( June 27, 2002). When official immunity shields a government employee from liability, the government employer is shielded from liability under the doctrine of sovereign immunity. University of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). A governmental employee is entitled to official immunity (1) for the performance of discretionary duties; (2) within the scope of the employee=s authority; (3) provided the employee acts in good faith. See City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). To obtain summary judgment, Weatherly and the City must conclusively prove each element of this affirmative defense. Clark, 38 S.W.3d at 580.

It is undisputed the accident occurred while Weatherly was responding to a call as a peace officer for the City. Because Weatherly was discharging the duties generally assigned to him in responding to an emergency call, he was performing a discretionary act within the scope of his authority. See Chambers, 883 S.W.2d at 655, 658.[2] Therefore, having established the first two prongs of the official-immunity test, Weatherly and the City are entitled to summary judgment if the evidence establishes as a matter of law that Weatherly=s conduct in response to the suicide call was in good faith. See Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997).

The good-faith standard is not the equivalent of a general negligence test, which addresses what a reasonable person would have done. See id. Rather, good faith depends on how a reasonably prudent officer could have assessed both the need for the officer=s response and the risks of the officer=s course of action. Id. The need element is determined by factors such as Athe seriousness of the crime or accident to which the officer responds, whether the officer=s immediate presence is necessary to prevent injury or loss of life or to apprehend a suspect and what alternative courses of action, if any, are available to achieve a comparable result.@ Id. The risk aspect of good faith encompasses Athe nature and severity of harm that the officer=s actions could cause (including injuries to bystanders as well as the possibility that an accident would prevent the officer from reaching the scene of the emergency), the likelihood that any harm would occur, and whether any risk of harm would be clear to a reasonably prudent officer.@ Id. Good faith is conclusively proven by showing that a reasonably prudent officer under the same or similar circumstances could have believed that the need for the officer=s response outweighed a clear risk of harm to the public. See id.; Chambers, 883 S.W.2d at 656.

Weatherly and the City=s Summary Judgment Evidence

In this case, Weatherly and the City presented several affidavits in support of their motion for summary judgment.[3] In his own affidavit, Weatherly addressed the need aspect of the need/risk balancing test as follows:

I received a call from Police Officer Carl Herbst advising me of an attempted suicide. I was the supervising sergeant on duty, as well as the officer providing back-up to Officer Herbst. In such calls, it is extremely important that the supervising sergeant arrive on the scene as quickly as possible in order to make major decisions, such as the use of force to gain entry into the dwelling, and to secure the scene for medical personnel.

A threatened suicide call can rapidly deteriorate. Frequently, an individual who is suicidal is also homicidal. It is important for the supervising sergeant to take control of the scene and determine the best way to intervene, not only to protect the life of the individual threatening suicide, but to protect the lives of others, including other responding officers. In a threatened suicide call, quick intervention is crucial and can often times prevent the loss of life.

Thus, Weatherly=s affidavit demonstrates he assessed the need for his action by considering the seriousness of the situation and the necessity of his immediate presence to prevent injury or loss of life. See Clark, 38 S.W.3d at 581.

Derby contends this affidavit, as well as the others offered by Weatherly and the City, are insufficient because they do not directly address one additional need factor identified in WadewitzCwhat alternative courses of action, if any, were available to achieve a comparable result. See 951 S.W.2d at 467. However, Weatherly=s affidavit stresses the importance of having Athe supervising sergeant@ (as opposed to any officer) reach the scene quickly to secure the site and take control of the situation. By emphasizing the significance of Weatherly having a personal and physical presence at the scene as quickly as possible, by implication, Weatherly=s affidavit discounts the possibility that an alternative course of action would have been appropriate under these circumstances.

With respect to the risk side of the balancing test, Weatherly stated in his affidavit:

Based upon my location and the scene of the attempted suicide, I determined that traveling south on Yaupon was the most expeditious way to proceed. Yaupon is a major, divided highway in the city and does not run through residential areas. I proceeded south on Yaupon street with all of the emergency lights of my patrol car in operation. The flashing lights were working properly at all times. It is appropriate to respond to an attempted suicide call by activating emergency lights and proceeding as quickly as possible to the scene because of the severity of the call and the possibility that the loss of human life may be occurring. I used the vehicle=s emergency lights in order to make my vehicle visible from a long distance.

Weatherly further stated that Athe roadways were dry and the weather conditions were clear. The accident occurred at approximately 4:00 pm on a Monday afternoon and the traffic was light.@ As our supreme court held in Clark, an affidavit in support of an officer=s motion for summary judgment based on official immunity need not explicitly mention the risk of colliding with a third party, nor must it negate the existence of all circumstances or risks that did not exist. 38 S.W.3d at 586. Rather, assessment of the risk may be established by an affidavit showing the officer assessed the specific circumstances that affected the risk, such as time of day, traffic, and weather and road conditions. Id.

In addition, Weatherly and the City submitted affidavits from the City=s Chief of Police, Paul Hromadka, and Barry Adams, the Texas Department of Public Safety trooper who investigated the accident scene. Hromadka initially noted that in his opinion, a threat to commit suicide constitutes a police emergency because of the immediate threat of a loss of life. Based on his review of all documents pertaining to the accident and his participation on the police department=s Accident Review Board, Hromadka stated:

A reasonable prudent officer would have determined that the situation described to Sgt. Weatherly by Officer Herbst was a life-threatening emergency and that an immediate response by Sgt. Weatherly, the supervising sergeant on duty, was necessary and appropriate. Further, it is my professional opinion that the manner in which Sgt. Weatherly responded to the emergency police call did not present more than a minimal risk to the public. The route Sgt. Weatherly took to reach the scene did not involve him traveling through a residential or highly congested area, the traffic was light, and the weather conditions dry.

Although Hromadka did not express an opinion on the ultimate question of whether a reasonable officer in Weatherly=s position could have believed that Weatherly=s course of action was justified,[4] his affidavit provides evidence of how a reasonably prudent officer could have assessed both the need to respond as Weatherly did and the risk of that response.

Finally, Weatherly and the City presented the affidavit of Trooper Barry Adams of the Texas Department of Public Safety, who investigated the accident scene. Like Weatherly, Adams noted that Athe weather was clear and the roads were dry.@ Adams further stated:

It is my determination, based on my review of the evidence, that Officer Weatherly did have his emergency lights operating at the time of the accident. . . . A reasonably prudent officer under the same or similar circumstances, would find Officer Weatherly=s actions justified. It is reasonable to conclude that the driver of the other vehicle would have remained stopped.

We conclude the summary judgment evidence includes facts upon which a reasonably prudent officer in the same or similar circumstances could agree that the need for Weatherly=s actions (considering the emergency nature of a suicide threat and potential for loss of life) outweighed the risk to the public from his response (considering that the traffic was light, that the route was on a divided highway, that the weather and road conditions were good, and that the officer had his emergency lights activated). Accordingly, Weatherly and the City established that Weatherly acted in good faith. See Clark, 38 S.W.3d at 586.

Derby=s Summary Judgment Evidence

To controvert a police officer=s summary judgment evidence on good faith, the nonmovant must show that no reasonable person in the officer=s position could have thought that the facts justified the officer=s acts. Id. at 581. In response to Weatherly and the City=s motion, Derby submitted the affidavit of Michael R. Yosko, a former patrol officer with the Port Arthur Police Department, along with various deposition excerpts, the accident report, and a work performance evaluation prepared several months after the accident. We find that none of this evidence addresses the question of whether Weatherly acted in good faith in responding as he did. For example, Yosko stated in his affidavit that Ano reasonable or prudent officer would have endangered others by driving on this section of Yaupon as Officer Weatherly did.@ While this and other similar statements might be relevant in assessing whether Weatherly was negligent, they do not controvert the summary judgment evidence showing that a reasonably prudent officer in Weatherly=s circumstance could have believed his actions were justified. Likewise, statements from Hromadka in which he questions Weatherly=s failure to get additional information regarding the suicide threat and suggests that Weatherly should have been Acognizant that [Derby] might have pulled out [from the intersecting street]@ do not negate the showing that Weatherly acted in good faith.

Derby argues Weatherly did not continually assess the need versus the risk. We disagree. The need for his immediate presence as Athe supervising sergeant@ to prevent injury or loss of life remained the same. Further, Weatherly continually assessed the risk in stating that the intersection he approached was Acontrolled by one stop sign, which is on Yaupon Ct.@and that he was fully committed to entering the intersection when Derby pulled out in front of him. Although Weatherly did not use the exact language Wadewitz employs, on the whole he does assess the nature, severity, likelihood, and obviousness of the risk to the public, namely the risk of a collision with a third party. See id. at 585-86 (finding consideration of time of day, weather and road conditions indicates an assessment of the specific circumstances and risk present to third parties). Summary judgment requires that a movant establish facts upon which the court could base its legal conclusion, not that the parties use particular words. Id. at 586.

We hold that Weatherly and the City conclusively proved, and Derby=s summary judgment evidence did not successfully controvert, that Weatherly acted in good faith. Accordingly, we reverse the order of the trial court and render judgment in favor of appellants.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Opinion filed August 1, 2002.

Panel consists of Justices Yates, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.3(b).

[1] Derby later amended his petition to plead a cause of action for Aspecial defects@ against the City based on the design of Yaupon Street and an alleged obstruction at the intersection with Yaupon Court. However, the trial court granted the City=s motion for summary judgment on that issue. The court=s ruling on that motion is not a subject of this interlocutory appeal.

[2] Relying on section 101.055 of the Texas Tort Claims Act, Derby argues that Weatherly and the City are not entitled to immunity because the suicide threat was not in fact an emergency and Weatherly failed to comply with all laws and ordinances applicable to emergency actions. Tex. Civ. Prac. & Rem. Code Ann. ' 101.055(2) (Vernon 1997). However, the official-immunity defense does not depend on the application of section 101.055, which merely exempts certain claims from liability under the Texas Tort Claims Act. See Telthorster, 45 Tex. Sup. Ct. J. at 949 (defining official immunity as Aan affirmative defense that shields governmental employees from personal liability@ for the good-faith performance of discretionary duties).

[3] Although Derby filed objections to the affidavits and the trial court overruled all such objections, Derby failed to file a notice of appeal or raise a cross-point concerning the denial of its objections. Accordingly, we will not address Derby=s contentions that the affidavits are conclusory and speculative. See City of San Antonio v. Hernandez, 53 S.W.3d 404, 407 (Tex. App.CSan Antonio 2001, pet. denied).

[4] Hromadka instead expressed the opinion that a reasonable prudent police officer, under like circumstances, Awould act in the same manner@ as Weatherly. For purposes of establishing good faith, however, the proper focus is on what a reasonably prudent officer could have believed, not what he or she would have done.